IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO.35221 OF 2017 (GM-DRT) BETWEEN:
UNIVERSITY OF AGRICULTURAL SCIENCES G.K.V.K.
BENGALURU-560 065 REPRESENTED BY ITS REGISTRAR, DR. D. P. KUMAR.
….PETITIONER (BY SMT. NIMISHA KUMAR, ADVOCATE FOR SRI NITIN R, ADVOCATE) AND:
UNITED COMMERCIAL BANK NO.83, M.G.ROAD, BENGALURU-560 001.
REPRESENTED BY ITS GENERAL MANAGER.
….RESPONDENT (BY SRI. K R PARASHURAM, ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.04.2017 OF THE DEBT RECOVERY APPELLATE TRIBUNAL IN I.A.619 OF 2016 IN M.A. 251 OF 2011 AND ALLOW THE I.A. 619 OF 2016 IN M.A. 251 OF 2011 AND RESTORE M.A. 251 OF 2011 AT ANNEXURE-H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
ORDER Aggrieved by the order passed by the Debt Recovery Appellate Tribunal in I.A.No.619 of 2016 in M.A.No.251 of 2011, the applicant has filed this appeal.
2. In terms of the impugned order, the Appellate Tribunal was of the view that no satisfactory explanation has been given for the absence of the appellant and that since the Bank is awaiting for adjudication of the recovery of almost Rs.83,00,000/-, the appeal was dismissed.
3. The learned counsel for the petitioner contends that there is no reason assigned by the Tribunal and that the claim of the Bank has no nexus with the applicant.
4. The learned counsel for the respondent is absent.
5. On hearing learned counsel, we are of the view that appropriate relief requires to be granted.
6. The instant M.A.No.251 of 2011 was filed on the ground that the learned counsel who appeared therein, was of the view that he would receive notice of the date of hearing. He has narrated the reasons for his absence in paragraph-5 of the affidavit, which also indicated that subsequent notices were also not served on the counsel. That, the lapse was due to oversight and for bonafide reasons by the learned counsel. Rather than considering the reasons and whether to accept it or not, the Appellate Tribunal held that no satisfactory explanation has been given for the absence of the appellant.
7. On considering the affidavit, we do not think so. Substantial reasons have been given by the learned counsel for his absence. We are inclined to accept the reasons assigned. Furthermore, the application was dismissed on an additional ground that the Bank has been awaiting for adjudication / recovery since the year 1995. We are of the view that the same cannot constitute a ground for consideration of the Miscellaneous Appeal.
8. Under these circumstances, the writ petition is allowed. The order passed by the Debt Recovery Appellate Tribunal dated 10.04.2017, is set aside. M.A.No.251 of 2011 is allowed. The order dated 01.11.2016, passed in O.A.No.872 of 1995, is recalled. O.A.No.872 of 1995 is restored to file. The Tribunal to consider the same on merits and pass appropriate orders.
9. In view of the above, we deem it just and necessary that appropriate cost be levied on the petitioner. Hence, the petitioner is directed to deposit cost of Rs.10,000/- with the Registry of this court, within a period of one week.
Sd/- Sd/-
JUDGE JUDGE RD